People v. Hames

Opinion

KINGSLEY, Acting P. J.

In 1969, defendant was charged with possession of heroin, in violation of (then) section 11500 of the Health and Safety Code. On July 11, 1969, he pled nolo contendere to that charge. The criminal proceedings were suspended and, on August 14, 1969, defendant was committed to the California Rehabilitation Center, pursuant to section 3051 of the Welfare and Institutions Code. In March of 1973, the trial court was advised, by a letter from the superintendent of that facility, that defendant had been found unfit for treatment because of a detainer filed against him by the State of Nevada. The criminal proceedings were resumed. On March 5, 1973, defendant’s then counsel, a deputy public defender, waived hearing on the exclusion and proceeded to argue for a grant of probation. The matter was continued for a current probation report. When the criminal proceedings were resumed, on March 26, 1973, defendant substituted private counsel for the public defender. The new counsel moved to withdraw both the plea of nolo contendere and the waiver of an exclusionary hearing. Both motions were denied and defendant was sentenced to state prison. On April 23, 1973, he appealed from the order denying his motions.

On June 10, 1974, defendant, appearing in propria persona, moved to vacate the judgment on the ground that he had been advised that the Nevada detainer, which he contends was the sole basis for his rejection from the narcotic treatment program, had been withdrawn. The motion was denied peremptorily. On July 8, 1974, he appealed from that order.

I

We first dispose of various procedural contentions:

(1) We agree with the People that the present appeals do not raise any question regarding the validity of the original finding of guilt, based on the nolo contendere plea, or the commitment order that followed. Apart from the fact that the time to appeal from the commitment order had

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elapsed (Pen. Code, § 1237, subd. 1) any appeal from that matter required a certificate of probable cause (Pen. Code, § 1237.5), which the trial court denied.

(2) We reject the frivolous contention by the People that the notice of appeal, dated April 23, 1973, was ineffective because it does not bear a clerk’s filing stamp. The record shows that the trial court had acted on that notice by endorsing thereon its refusal to grant a certificate of probable cause. A clerk’s and reporter’s transcript of all of the proceedings relating to both the April 23, 1974, and the June 10, 1974, orders are before us. Since no certificate of probable cause was needed for the April 23 appeal,